Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year
On June 15, 2023, at the 2023 Annual General Meeting of Shareholders (the “Annual Meeting”) of BeiGene, Ltd. (the “Company”), the Company’s shareholders approved the Seventh Amended and Restated Memorandum and Articles of Association of the Company (the “Seventh Restated Articles”), which amended the Sixth Amended and Restated Memorandum and Articles of Association of the Company (the “Existing Articles”) to comply with the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong (the “HK Listing Rules”).
The Seventh Restated Articles include the following key changes to the Existing Articles:
Inspection of Register of Members
In the Seventh Restated Articles, the Company amended the Existing Articles such that any register held in Hong Kong shall during normal business hours (subject to such reasonable restrictions as the Board of Directors of the Company (the “Board of Directors”) may impose) be open to inspection by a member on payment of a fee of such amount not exceeding the maximum amount as may from time to time be permitted under the HK Listing Rules as the Board of Directors may determine for each inspection, provided that the Company may close the register in terms equivalent to section 632 of the Companies Ordinance (Cap. 622) of Hong Kong.
Annual Meeting
In the Seventh Restated Articles, the Company amended the Existing Articles to require that, to the extent required by the rules of the stock exchanges on which the Company lists its securities as applicable from time to time, the Company hold a general meeting as its annual general meeting for each financial year.
Proceedings at General Meetings
In the Seventh Restated Articles, the Company amended the Existing Articles such that subject to any rights and restrictions then applicable to any class or classes of shares, every shareholder of the Company present has the right to speak at any general meeting.
Votes of Members
In the Seventh Restated Articles, the Company amended the Existing Articles such that to the extent a shareholder is required to abstain from voting on a resolution or is restricted to voting only for or only against a resolution, any votes cast by or on behalf of such shareholder in contravention of that requirement or restriction are not counted to the Company’s knowledge.
Term for Directors
In the Seventh Restated Articles, the Company amended the Existing Articles such that, to the extent required by applicable HK Listing Rules, any director appointed to fill a vacancy arising from the resignation of a former director or as an addition to the existing board, shall only hold office until the next annual general meeting of the Company and shall then be eligible for re-election at that meeting.
Auditor
In the Seventh Restated Articles, the Company amended the Existing Articles such that, to the extent required by the applicable HK Listing Rules, at every annual general meeting the Members shall appoint, by Ordinary Resolution, an auditor or auditors to hold office until the next annual general meeting. The removal of an auditor before the expiration of such term shall require the approval of an Ordinary Resolution. The remuneration of the auditors shall be fixed by Ordinary Resolution at the annual general meeting at which they are appointed; provided that, with respect to any year, the Members may, by Ordinary Resolution, delegate the fixing of such remuneration to the Board of Directors at the annual general meeting.
The Seventh Restated Articles also contain additional changes to implement the above amendments.
The foregoing description of the terms of the Seventh Restated Articles and the changes to the Existing Articles are qualified in its entirety by the full text of the Seventh Restated Articles, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On June 15, 2023, the Company held its Annual Meeting. As disclosed in the Company’s definitive proxy statement for the Annual Meeting filed with the Securities and Exchange Commission on April 27, 2023 (the “Proxy Statement”), there were 1,362,652,101 ordinary shares entitled to vote at the Annual Meeting as of the record date of April 17, 2023 (the “Record Date”), including ordinary shares in the form of American Depositary Shares, each representing 13 ordinary shares, and ordinary shares listed on the STAR Market and traded in RMB (“RMB shares”).
At the Annual Meeting, of the ordinary shares entitled to vote, 1,053,001,788 ordinary shares, including ordinary shares represented by ADSs, or approximately 77.3% of the outstanding ordinary shares on the Record Date, were present and voted in person or by proxy (including abstentions) for Resolutions 1 through 7 and Resolutions 9 through 16; and 1,047,577,788 ordinary shares, including ordinary shares represented by ADSs, or approximately 76.9% of the outstanding ordinary shares on the Record Date, were present and voted in person or by proxy (including abstentions) for Resolution 8. In accordance with the Company’s Existing Articles, (a) the quorum required for a general meeting of shareholders at which an ordinary resolution is proposed consists of such shareholders present in person or by proxy who together hold shares carrying the right to at least a simple majority of all votes capable of being exercised on a poll, and (b) the quorum required for a general meeting at which a special resolution is proposed consists of such shareholders present in person or by proxy who together hold shares carrying the right to at least two-thirds of all votes capable of being exercised on a poll.
The matters set forth below were voted on by the Company’s shareholders as of the Record Date at the Annual Meeting. Detailed descriptions of these matters and the voting procedures applicable to these matters at the Annual Meeting are contained in the Proxy Statement. Set forth below are the total number of shares voted for and against each matter, as well as the total number of abstentions and broker non-votes with respect to each matter.
(1) Ordinary resolution: to re-elect Dr. Margaret Dugan to serve as a Class I director until the 2026 annual general meeting of shareholders and until her successor is duly elected and qualified, subject to her earlier resignation or removal: | | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non-Votes |
| 1,043,071,109 | 9,915,997 | 14,682 | — |
Accordingly, Dr. Margaret Dugan was re-elected to serve as a Class I director.
(2) Ordinary resolution: to re-elect John V. Oyler to serve as a Class I director until the 2026 annual general meeting of shareholders and until his successor is duly elected and qualified, subject to his earlier resignation or removal: | | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,040,325,525 | 12,461,780 | 214,483 | — |
Accordingly, John V. Oyler was re-elected to serve as a Class I director.
(3) Ordinary resolution: to re-elect Dr. Alessandro Riva to serve as a Class I director until the 2026 annual general meeting of shareholders and until his successor is duly elected and qualified, subject to his earlier resignation or removal: | | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,029,761,599 | 23,222,127 | 18,062 | — |
Accordingly, Dr. Alessandro Riva was re-elected to serve as a Class I director.
The proposals for the election of directors related solely to the election of Class I directors nominated by the Board of Directors. The terms of the following directors continued after the Annual Meeting: Donald W. Glazer, Michael Goller, Anthony C. Hooper, Ranjeev Krishana, Thomas Malley, Dr. Corazon (Corsee) D. Sanders, Dr. Xiaodong Wang and Qingqing Yi.
(4) Ordinary resolution: to approve and ratify the selection of Ernst & Young LLP, Ernst & Young and Ernst & Young Hua Ming LLP as the Company’s reporting accounting firms for the fiscal year ending December 31, 2023:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,052,805,024 | 172,917 | 23,847 | — |
Accordingly, the selection of Ernst & Young LLP, Ernst & Young and Ernst & Young Hua Ming LLP as the Company’s reporting accounting firms was approved and ratified.
(5) Ordinary resolution: to authorize the Board of Directors to fix the auditors’ remuneration for the fiscal year ending December 31, 2023: | | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,052,931,046 | 57,900 | 12,842 | — |
Accordingly, the Board of Directors was authorized to fix the auditors’ remuneration for the fiscal year ending December 31, 2023.
(6) Ordinary resolution: within the parameters of the HK Listing Rules, to approve the granting of a share issue mandate to the Board of Directors to issue, allot or deal with (i) unissued ordinary shares (excluding our RMB Shares) and/or ADSs not exceeding 20% of the total number of issued ordinary shares (excluding RMB shares) of the Company and/or (ii) unissued RMB shares not exceeding 20% of the total number of issued RMB shares of the Company, each as of the date of passing of such ordinary resolution up to the next annual general meeting of shareholders of the Company, subject to the conditions described in the Proxy Statement (the “General Mandate to Issue Shares”): | | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 840,972,117 | 211,977,909 | 51,762 | — |
Accordingly, the General Mandate to Issue Shares was approved.
(7) Ordinary resolution: within the parameters of the HK Listing Rules, to approve the granting of a share repurchase mandate to the Board of Directors to repurchase an amount of ordinary shares (excluding RMB shares) and/or ADSs, not exceeding 10% of the total number of issued ordinary shares (excluding RMB shares) of the Company as of the date of passing of such ordinary resolution up to the next annual general meeting of shareholders of the Company, subject to the conditions described in the Proxy Statement (the “General Mandate to Repurchase Shares”):
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,051,315,803 | 1,653,723 | 32,262 | — |
Accordingly, the General Mandate to Repurchase Shares was approved.
(8) Ordinary resolution: to authorize the Company and its underwriters, in their sole discretion, to allocate to each of Baker Bros. Advisors LP and Hillhouse Capital Management, Ltd. and parties affiliated with each of them (the “Existing Shareholders”), up to a maximum amount of shares in order to maintain the same shareholding percentage of each of the Existing Shareholders (based on the then-outstanding share capital of the Company) before and after the allocation of the corresponding securities issued pursuant to an offering conducted pursuant to the general mandate set forth above for a period of five years, which period will be subject to an extension on a rolling basis each year (the “Connected Person Placing Authorization I”):
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 469,735,693 | 301,461,113 | 276,380,982 | — |
Accordingly, the Connected Person Placing Authorization I was approved.
(9) Ordinary resolution: to authorize the Company and its underwriters, in their sole discretion, to allocate to Amgen Inc. (“Amgen”) up to a maximum amount of shares in order to maintain the same shareholding percentage of Amgen (based on the then- outstanding share capital of the Company) before and after the allocation of the corresponding securities issued pursuant to an offering conducted pursuant to the general mandate set forth above for a period of five years, which period will be subject to an extension on a rolling basis each year, conditional on the approval of the shareholders who are not Amgen (the “Connected Person Placing Authorization II”):
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 531,543,287 | 282,998,210 | 238,460,291 | — |
Accordingly, the Connected Person Placing Authorization II was approved.
(10) Ordinary resolution: to approve the grant of an option to acquire shares to Amgen to allow Amgen to subscribe for additional shares under a specific mandate in an amount necessary to enable it to increase (and subsequently maintain) its ownership at approximately 20.6% of the Company’s outstanding share capital, up to an aggregate of 75,000,000 ordinary shares during the option term, pursuant to the terms of the Restated Amendment No. 2 dated September 24, 2020 (the “Restated Second Amendment”) to the Share Purchase Agreement dated October 31, 2019, as amended, by and between the Company and Amgen:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 706,984,455 | 107,598,758 | 238,418,575 | — |
Accordingly, the grant of an option to acquire shares to Amgen pursuant to the terms of the Restated Second Amendment was approved.
(11) Ordinary resolution: to approve the grant of restricted share units (“RSUs”) with a grant date fair value of US$5,500,000 to Mr. John V. Oyler under the Second Amended and Restated 2016 Share Option and Incentive Plan (as amended, the “2016 Plan”), according to the terms and conditions described in the Proxy Statement:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 922,909,883 | 79,685,760 | 50,406,145 | — |
Accordingly, the grant of RSUs to Mr. John V. Oyler under the 2016 Plan was approved.
(12) Ordinary resolution: to approve the grant of RSUs with a grant date fair value of US$1,333,333 to Dr. Xiaodong Wang under the 2016 Plan, according to the terms and conditions described in the Proxy Statement:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 959,826,464 | 82,102,726 | 11,072,598 | — |
Accordingly, the grant of RSUs to Dr. Xiaodong Wang under the 2016 Plan was approved.
(13) Ordinary resolution: to approve the grant of RSUs with a grant date fair value of US$200,000 to each of the independent non-executive directors, Dr. Margaret Dugan, Mr. Donald W. Glazer, Mr. Michael Goller, Mr. Anthony C. Hooper, Mr. Ranjeev Krishana, Mr. Thomas Malley, Dr. Alessandro Riva, Dr. Corazon (Corsee) D. Sanders, and Mr. Qingqing Yi, under the 2016 Plan, according to the terms and conditions described in the Proxy Statement:
| | | | | | | | | | | |
Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 968,887,884 | 80,929,272 | 3,184,632 | — |
Accordingly, the grant of RSUs to each of the independent non-executive directors, Dr. Margaret Dugan, Mr. Donald W. Glazer, Mr. Michael Goller, Mr. Anthony C. Hooper, Mr. Ranjeev Krishana, Mr. Thomas Malley, Dr. Alessandro Riva, Dr. Corazon (Corsee) D. Sanders, and Mr. Qingqing Yi, under the 2016 Plan, was approved.
(14) Ordinary resolution: non-binding, advisory vote on the compensation of the Company’s named executive officers, as disclosed in the Proxy Statement:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 896,391,976 | 156,162,133 | 447,679 | — |
Accordingly, on a non-binding, advisory basis, the compensation of the Company’s named executive officers, as disclosed in the Proxy Statement, was approved.
(15) Special resolution: to adopt the Seventh Amended and Restated Memorandum and Articles of Association of the Company as described in the Proxy Statement:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 1,052,519,947 | 35,904 | 445,937 | — |
Accordingly, the Seventh Amended and Restated Memorandum and Articles of Association of the Company, was adopted.
(16) Ordinary resolution: to approve the adjournment of the Annual Meeting by the chairman, if necessary, to solicit additional proxies if there are insufficient votes at the time of the Annual Meeting to approve any of the proposed resolutions 1 to 15:
| | | | | | | | | | | |
| Votes For | Votes Against | Abstentions | Broker Non- Votes |
| 949,045,011 | 103,527,421 | 429,356 | — |
Accordingly, the adjournment of the Annual Meeting by the chairman, if necessary, to solicit additional proxies if there are insufficient votes at the time of the Annual Meeting, to approve any of the proposed resolutions 1 to 15, was approved.